Reply Brief of Petitioner — Springer v. United States

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IN THE

Supreme Court of the United States

OcToBER TERM, 1973

No. 73-1771

Curtis HowE SprinGer, ET AL., Petitioners

7.

UnitTep STATES OF AMERICA, ET AL.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS

This Brief is submitted by Petitioners pursuant to

Rule 24 in reply to the Memorandum for the United

States in Opposition filed by the Solicitor General of

the United States.

1. In its Memorandum, the United States asserts

that Petitioners have contended ‘‘that 30 U.S.C. 38

removes the requirement of discovery of a valuable

mineral deposit where the claimant has been in pos-

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session for a period equal to the period of the appli-

cable state statute of limitations.’’ (Memo. p. 2).

This characterization of Petitioners’ contentions is

erroneous. At no time have Petitioners contended

that 30 U.S.C. 38, which is applicable to holding of

mineral lands over long periods of time, removes the

element of discovery. Petitioners have asserted that

said section lowers the burden of proof as to the element

of discovery as well as other elements usually required

to establish a mining claim, but nowhere have Peti-

tioners contended that discovery is not required.

Petitioners argue that such lower burden of proof

should have been applied in the proceedings below

instead of the higher burden actually employed.

2. The United States further asserts, and quotes

from the Court of Appeals below, that Petitioners’

‘‘activities cannot by any stretch of the imagination

be considered the mining of valuable minerals.”’

(Memo. p. 3). Petitioners submit that this very point

is the subject of extensive argument in the Petition

(Pet. pp. 26-34) and cannot be summarily dismissed by

a quotation unsupported by rebuttal argument, par-

ticulavl7 since Petitioners’ argument demonstrates

that this view of the Court of Appeals is erroneous.

3. The Memorandum in Opposition next suggests

that Petitioners are attempting by this action to locate

‘bathing salts”? and that ‘‘bathing salts’? are not

locatable because their primary constituency is sodium.

(Memo. p. 3). Again, this is an erroneous interpreta-

tion of Petitioners’ contentions. The Petition ade-

quately demonstrates why such a neat and pat char-

acterization is in error, because the minerals are not

relied upon chiefly for the sodium contained in such

minerals and, if the Government’s argument has any

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validity, the natural pervasiveness of sodium would

prevent almost all mining activities and minerals from

being subject to location. (Pet. pp. 26-28).

4. The Memorandum in Opposition asserts that

Petitioners bear the burden of proof in this case, citing

two cases for this proposition, Foster v. Seaton, 271

F.2d 836 (D.C. Cir. 1959) ; Converse v. Udall, 399 F.2d

616 (9th Cir. 1968), certiorari denied, 393 U.S. 1025

(1969). (Memo. p. 3). These cases, however, relate

to the burden of proof required under other parts of

the Mining Laws and do not consider the extent of the

burden of proof required under 30 U.S.C. 38. The

Petition herein (pp. 15-22) adequately shows that 30

U.S.C. 38 establishes a lower burden of proof as to the

element of discovery for a long term claimant and that

Petitioners have met this burden.

5. The United States urges on this Court the

proposition that estoppel does not apply against the

federal Government. (Memo. pp. 3-4). Petitioners,

on the other hand, have adequately pointed out why

the doctrine of estoppel should apply in this ease. As

shown in the Petition, the United States Court of

Appeals for the Ninth Cireuit, has applied estoppel

against the federal Government in circumstances very

similar to that presented here. United States v. Lazy

F C Ranch, 481 F.2d 985 (9th Cir. 1973). As pointed

out in that case, justice and fair play on the part of

the Government when dealing with its citizens in cir-

cumstances such as those involved in the instant case

require that the Government be estopped from denying

the validity of Petitioners’ claims. The Government

has simply ignored this case and the reasoning set forth

therein.

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6. The United States contends that, in any event,

there were no circumstances constituting estoppel.

(Memo. p. 4). Petitioners attempted to argue

estoppel in the District Court but the court there held,

erroneously, that such issue was not applicable.

(Hearing on Application of Defendant for Stay of

Injunction Pendente Lite, August 2, 1971, Tr. pp. 5-7) ;

(Contempt Proceeding, October 20, 1973, Tr. pp. 212-

213); and (Hearing on Motion for Partial Summary

Judgment, January 9, 1973, Tr. p. 19). Consequently,

no direct evidence on that issue was introduced.

Nevertheless, the record shows the elements of

estoppel have been established, (See Pet. pp. 23-25),

and the factors supporting such elements have not

been denied previously by the Government.

In short, the Memorandum for the United States in

Opposition disregards the facts, the Mining Laws of

the United States and the applicable decisions of this

Court. The Petition for a Writ of Certiorari should

accordingly be granted.

Respectfully submitted,

GroRGE W. NILSSON,

714 West Olympic Boulevard,

Los Angeles, Calif. 90015,

Attorney for Petitioners,

Enpwarp A, McCabe,

Hamel, Park, MeCabe & Saunders,

1776 F Street, N.W.,

Washington, D.C. 20006,

Of Counsel.

August 1974